JUDGMENT

I. MAHANTY, J. The appellant has sought to file the present appeal challenging the order of conviction as well as the sen¬tence recorded by the Addl. Sessions Judge, Sambalpur in Sessions Trial No. 4/45 of 1989 convicting the appellant under Section 458 of Indian Penal Code and sentencing him to undergo R.I. for a period of one year.

2. The case of the prosecution is based on the F.I.R. lodged by one Sri Gangadhar Satpathy, the Forester, on 18.10.1988 at about 8.00 A.M. before the Officer-in-Charge, Dhama Police Station. It is alleged that the present appellant came to the quarters of the informant (P.W.1) who was the Forester at Larasa¬ra. At that point of time, it is stated that the informant was preparing himself to go to bed after taking his dinner. It is alleged that the accused-appellant broke upon the door, entered into the house and abused the informant with filthy language. The further case of the prosecution is that the accused allegedly pressed the throat of the informant and showing the informant three cartridges, stated that he has obtained the same in order to kill him.

It further reveals from the F.I.R. that the accused also brought out a knife and attempted to assault the informant with the same, but somehow, the informant managed to free himself and escaped from that place. Thereafter, it is alleged that the accused once again entered into the official quarters of the Forester, damaged the household articles and removed cash amounting to Rs. 500/-. On the basis of the aforesaid allegation as contained in the F.I.R., Dhama P.S. Case No. 43 of 1988 was registered and after investigation, charge-sheet was submitted against the appellant under Sections 458, 307 and 380 of the Indian Penal Code. The plea of the appellant was a complete denial.

3. In order to substantiate the case, the prosecution examined seven witnesses, P.W.1 was the Forester (informant), P.W.2 is the Forest Guard, P.W.3 is the Choukidar of the Forest Inspection Bungalow, P.W.4 is the post occurrence witness who was declared hostile to the prosecution, P.W.5 is a witness to the seizure, P.W.6 was declared hostile and P.W.7 is the Investigat¬ing Officer. On behalf of defence, no witness is examined.

4. On a perusal of the judgment impugned, it appears that on the basis of the findings recorded in paragraph-8 of the Judgment, the trial Court came to hold that “there is no evidence that the accused had entered into the quarters of the Forester, caught hold his neck and pressed his throat or attempted to stab the Forester with a knife”. The trial Court also further came to hold that “the prosecution has failed to establish that the accused had removed any cash from the room of the informant and accordingly, came to hold that the prosecution has failed to substantiate the charge under Sections 307 and 380 I.P.C.

However, the trial Court in the impugned judgment and in particular, in paragraph-10 thereof, came to hold as follows :

“I find that the prosecution has been able to prove that during the night of the occurrence the accused trespassed to the quarters of P.W.1-Gangadhar Satpathy and attempted to cause hurt to him. Therefore a charge under Section 458 I.P.C. has been proved against the accused. xxx xxx”

Thereafter, on the finding that the appellant is guilty under Section 458 I.P.C., the trial Court while considering the question of sentence, recorded that the accused-appellant appears to be a first time offender but taking the nature of the offence into consideration, did not extend the benefit of the Probation of Offenders Act and sentenced the appellant to undergo R.I. for one year without any fine for the offence under Section 458 of the Indian Penal Code.

5. Mr. Dayananda Mohapatra, learned counsel for the appellant, has sought to challenge the said conviction and sen¬tence, inter alia, on the following grounds :

(a) There was an inordinate delay in lodging the F.I.R., inas¬much as the occurrence allegedly took place at 9.00 P.M. o